Burkett

facts not in evidence, facts linking defendant to the crime. The argument was not improper.

FACTS

From 2008 to April 2011 Barbara Mattos rented a home located on Michigan Avenue in West Sacramento. Her landlord was Mersa Noor. In March or April 2011 Noor gave Mattos a one-month notice to vacate with the idea she would be out of the home by May 3 or 4. Noor lived with his family on Carmel Bay Road in West Sacramento but was losing his home to foreclosure and needed to move into the

Undesignated section references are to the Penal Code.

2 Michigan Avenue home. He did not have an exact date by which he had to move out of his Carmel Bay Road home. Mattos removed all her belongings from the Michigan Avenue home before April 30, 2011. Beginning April 28 and finishing late April 30, Mattos painted and cleaned the home with the help of several people. Mattos last viewed the inside of the home when she removed a vacuum or shampooer on May 1. There was nothing left inside the home. Mattos turned off all the utilities effective May 1. She had all the keys to the residence and attempted to contact Noor to return the keys to him, but she had been unsuccessful. Mattos called Noor about…

A jury convicted defendant Penny Lynn Burkett of first degree burglary (Pen. Code, § 459—count l) 1 and vandalism (§ 594, subd. (b)(1)— count 2). Another count charging defendant with possession of burglary tools, a misdemeanor (§ 466—count 3), was dismissed prior to trial. The court imposed the midterm of four years for burglary, stayed sentence on a two-year midterm for vandalism, suspended execution of sentence, and granted probation.

Defendant appeals, contending the jury’s special finding that the burglarized dwelling was inhabited is not supported by sufficient evidence. We agree and will reduce the offense to second degree burglary. We will vacate the sentence and remand for resentencing.

Our conclusion regarding the insufficiency of the evidence that the residence was inhabited renders moot defendant’s additional contention that the trial court erred in denying her motion for acquittal challenging the degree of the offense.

Defendant finally claims the prosecutor committed prejudicial misconduct in his opening statement and closing arguments. As to defendant’s claim that the prosecutor misstated the law and facts related to whether the dwelling was inhabited,…

I concur in part II of the majority’s opinion, but I dissent as to part I. I would affirm the first degree burglary conviction.

I agree with the majority opinion’s well-crafted summary of the statutory scheme and common law underpinnings of first degree burglary under Penal Code sections 459 and 460. Nonetheless, I would reach a different conclusion in this case of first impression. I would hold that the burgled house was an inhabited dwelling because, at the time of the burglary, the owner intended to return to it as his residence.

Mersa Noor bought the house in question in 2006 or 2007 and lived in it. There can be no doubt that it was an inhabited dwelling then. In 2008, Noor moved out of the house and rented it to Barbara Mattos. There can also be no doubt that the house was an inhabited dwelling when Mattos lived in it. Then, in 2011, Noor decided to move back into the house, which required Mattos to move out. The burglary occurred after Mattos finished moving her belongings out of the house and before Noor started moving his belongings into the house. The house was not abandoned at that point; instead, it was merely in transition from the possession of a tenant back to…